Wednesday, September 2, 2009

Law Updates for August 28, 2009

Hair, 34 FLW 1669, 1st DCA, Stand your ground law-776.032(1). Denial of motion to dismiss based on issues of disputed fact was incorrect and directly contrary to precedent expressly holding that a Motion to Dismiss based on "Stand your ground" immunity cannot be denied because of the existence of disputed issues of material fact. Victim unlawfully and forcibly entered the vehicle and was still inside the vehicle where he was shot.

McKeown, 34 FLW 1689, 4th DCA, Felony DUI. Error to permit arresting ofc to testify he only arrests one-half of the DUI suspects he investigates. Error compounded when the prosecutor mentioned during closing argument. Error not harmless where def presented ample evidence to contradict the state's theory that the def was impaired by alcohol.

Byers, 34 FLW 1707, 2nd DCA, Trafficking in methamphetamine. Error to deny JOA for trafficking based on constructive possession. Def did not have dominion and control over backpack found in passenger side of the floorboard of vehicle during a consensual search, but established def only knew the drugs were in the car he drove to the motel and def knew a second man was going to sell the drugs and def agreed to drive a man to the motel in exchange for a small amount of the drug.

The Law Offices of Roger P. Foley, P.A.

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